If schools and academy trusts deny flexible working to teachers, it can amount to discrimination – leaving them open to union action and employment tribunal claims.
Under the Equality Act 2010, gender and age are among the “protected characteristics” that it is illegal to discriminate against; teachers’ unions have successfully fought for members who have suffered discrimination because of their part-time status, or who wish to work part-time.
Last year, the NUT teaching union lodged an employment tribunal claim for indirect sex discrimination after an academy leader in the North West returning from maternity leave was told that leadership positions had to be full-time.
The union argued that the policy disproportionately affected female members of staff; as a result, the school reviewed its decision and agreed to let her work part-time. A school that had a blanket policy of not allowing part-time job sharing for classroom teachers also settled a dispute with a 32-year-old teacher in Yorkshire and Humberside for £9,500, after the NASUWT teaching union claimed she had suffered indirect sex discrimination.
Although the government issued advice to help schools consider how to “encourage, support and enable” flexible working requests, discrimination cases involving part-time teaching, and women and older workers, are only likely to increase in number. Richard O’Dair, a barrister specialising in employment law at the 36 Group of barristers’ chambers in London, describes them as “pinch points” that are likely to become key issues in discrimination law over the next few years.
At last month’s NASUWT annual conference, O’Dair described indirect discrimination as “the claimant’s friend”, and singled out policies requiring full-time working as an “apparently neutral rule that arguably disadvantages particular groups”.
His advice to union representatives?
“From your point of view, the key thing is just to remember that there can be immense leverage in arguing that apparently neutral rules are suspect because they impact upon particular protected groups.”